Biotechnological Patents and Morality: A Critical View from a Developing Country

Biotechnological Patents and Morality: A Critical View from a Developing Country

Jakkrit Kuanpoth (University of Wollongong, Australia)
DOI: 10.4018/978-1-4666-2136-7.ch071
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The chapter deals with ethical aspects of patent law and how the global patent regime helps or hinders the development of a developing country such as Thailand. More specifically, it discusses Article 27.3 of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which states that countries may exclude methods of medical treatment, plants and animals (but not micro-organisms) from patent protection. It also provides legal analysis on the issue of whether developing countries can maximize benefits from the TRIPS morality exception (Article 27.2) in dealing with biotechnological patenting.
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Problems Of Biotech Patenting

The World Intellectual Property Organization (WIPO) provision on the protection of biotechnological inventions of 1984, defines ‘biotechnology’ thus (WIPO, 1984, p. 4):

Biotechnology concerns the creation of new varieties of plant, new animal breeds and new microorganisms, either by traditional selection methods or by new methods ..., genetic engineering.

Biotechnology involves the application of scientific and technological knowledge to the processing of materials by biological agents such as enzymes or cells, in order to provide goods and services for the benefit of mankind (Bull, Holt and Lilly, 1982, p. 21; Llewellyn, 1987). It may involve the production of plants, animals, and micro-organisms, or involve new methods of medical treatment. In creation of new varieties, modern biotechnology basically applies modern techniques such as embryo transfer, or genetic engineering, which is different from conventional methods of selective or cross breeding. The major difference between biotechnology and other inventions is that, the former concerns a modification of existing complexity in living organisms, while the latter involves the creation of complexity by shaping and altering the simple constituents of inanimate material into structures of increasing complexity (Bent, 1987, pp. 6-7; Cooper, 1985).

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